The Water Resources Development Act (WRDA) of 2018, included as title I of the America’s Water Infrastructure Act of 2018 (S. 3021), was signed into law today. The new law provides the needed authorization for investment in harbor, waterway, flood protection, and other water infrastructure improvements throughout the country.

As noted in the House Transportation and Infrastructure Committee press release:

“I am proud of the fact that our Committee, the House, and the Senate have worked together to send bipartisan WRDA legislation to the president in each of the last three congresses,” said Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA). “These laws are essential federal commitments to improving the harbors, ports, waterways, locks, dams, and other water infrastructure that makes our transportation network more efficient, the country competitively stronger, and our communities safer from flooding.”

“Passage of the Water Resources Development Act of 2018 is a win for our Nation’s coastal communities,” said Transportation and Infrastructure Committee Ranking Member Peter DeFazio (D-OR). “This critical legislation authorizes water infrastructure projects developed by the U.S. Army Corps of Engineers that will strengthen our ports, harbors, and waterways, and will create and sustain jobs. This bill is the product of a strong bipartisan, bicameral effort and I applaud my House and Senate colleagues for their hard work to get this legislation signed into law. In particular, I want to thank Chairman Shuster who is retiring and under whose leadership we have passed a WRDA bill every two years.”

In contrast to this wordier press release, the White House had very little to say.

But at the end of the day, this is now three WRDAs in the past six years, continuing the effort of each Congress to pass a WRDA since 2014. In speaking with House and Senate staff, they all appear dedicated to keeping this trend going in the next Congress. But, we will need to wait and see.

Amidst much fanfare, on Friday President Trump released a Presidential Memoranda (much like an Executive Order, yet different?) directing Federal agencies to work together to reduce regulatory burdens on Western water deliveries. It appears that the main thrust of the Memoranda is for NOAA Fisheries (which has Endangered Species Act oversight over certain fish species) to be more highly coordinated with the Secretary of the Department of the Interior, who has oversight over the Federal Department of Fish and Wildlife and the Federal Bureau of Reclamation.

Interestingly, the Memorandum actually leads off by noting that “[d]uring the 20th Century, the Federal Government invested enormous resources in water infrastructure throughout the western United States to reduce flood risks to communities….” This might lead one to believe that the Memoranda actually addresses flood risk issues. But in fact, that is the only reference to flood in the Memoranda. Nonetheless, it is an interesting action and could foretell the Administration’s willingness to provide streamlining in the flood risk reduction arena as well.

Here is the White House release on the Memoranda:

REDUCING REGULATORY BURDENS: President Donald J. Trump’s Administration is reducing regulatory burdens that harm reliable water access in the West.

President Trump is signing a memorandum to reduce regulatory burdens and promote more efficient environmental reviews of water infrastructure projects in the West.

Decades of uncoordinated regulatory actions have diminished the ability of Federal infrastructure to deliver needed water and have increased costs in the West.

Court actions dictating water operations have further complicated the regulatory environment.

The President is directing the Secretary of the Interior and the Secretary of Commerce to:

Streamline regulatory processes and remove unnecessary burdens.

Develop a timeline for completing compliance requirements for major water projects.

Responsibly expedite ongoing environmental reviews.

Convene water experts and resource managers to develop an action plan for improving seasonal forecasts of water availability.

Expand the use of technologies to improve the delivery of water and power.

Consider the views of local operators during hydroelectric relicensing proceedings.

IMPROVING WATER RELIABILITY: President Trump is working to increase water reliability for families, farmers, and cities across the West.

President Trump is committed to ensuring Western communities have the water supplies they need to maintain our economic prosperity.

Federal water projects in the West irrigate millions of acres of farmland, provide water and power to millions, and support more than $48 billion in economic activity.

The President’s memorandum will benefit major water infrastructure projects in order to more effectively meet the demands of water users in California, Idaho, Oregon, and Washington.

The Administration will expedite biological opinions for the Central Valley Project and the California State Water Project in California, Klamath Irrigation Project in Oregon, and the Federal Columbia River System in the Pacific Northwest.

Expedited regulatory processes will provide certainty for California farmers who need more water to restore farmlands crippled by drought and regulation.

PROTECTING ENDANGERED SPECIES: The President’s memorandum will ensure a timely review process without compromising environmental protections under the Endangered Species Act.

The memorandum establishes timelines for environmental reviews of infrastructure projects, allowing the best information to guide conservation of endangered or threatened species.

The timelines allow for robust environmental review processes.

Agencies will make determinations regarding endangered and threatened species based on the best available scientific and commercial data.

Great news for those of us tracking the Water Resources Development Act (WRDA), which authorizes specific projects, creates and modifies programs, and updates authorities for the U.S. Army Corps of Engineers: The Senate has scheduled a a cloture vote on Tuesday. For those with less background on the inner-workings of the Senate, a cloture vote is a procedural vote to allow only 30 hours of debate on a topic, followed by a vote on a bill. In this case, if the cloture vote passes then the WRDA bill will be officially voted on at 9:00 pm on Wednesday assuming the Senate is still in session.

You will likely recall that the House recently passed S.3021, which was a pre-conference bill developed jointly by the House and Senate staffers to coordinate the House’s and Senate’s views on what should be in WRDA. Assuming that the cloture vote passes on Tuesday this all but assures that WRDA will be approved by the Senate and signed by the President before the week’s end.

Here is the notice provided to the Senate’s Democratic Caucus:

Tuesday, October 9, 2018
* The Senate will convene at 3:00pm and resume consideration of the House message to accompany S.3021, the legislative vehicle for the Water Resources Development Act of 2018 (WRDA).
* The cloture vote on the motion to concur with the House message to accompany S.3021 (WRDA) will occur at 5:30pm. If cloture is invoked, the Senate will begin to burn up to 30 hours post-cloture.

During the Friday and Saturday Sessions
House message to accompany S.3021, the legislative vehicle for the Water Resources Development Act of 2018 (WRDA).
* Senator McConnell moved to concur with the House message to accompany S.3021 and filed cloture on that motion to concur.
o Senator McConnell filled the amendment tree relative to the House message to accompany S.3021.

Today the President signed an FY2019 “Minibus” into law (HR 5895) covering three of the twelve appropriations areas – energy and water, MilCon/VA, and legislative branch. The Energy and Water portion funds the activities of USACE’s Civil Works function. The agreement would provide a total of $7 billion to USACE, $171.5 million more than in fiscal 2018 and $2.21 billion more than requested by the President in his FY2019 Budget.

Our thanks to our friends at Van Scoyoc Associates for this information. Major allocations for USACE are shown in the table below:

Account (dollars in millions)

Agreement

Vs. FY 2018

Vs. request

Operation and maintenance

$3,739.5

+$109.5

+$1,662.8

Construction

$2,183.0

+$98.0

+$1,311.3

Mississippi River

$368.0

-$57.0

+$123.3

Regulatory program

$200.0

$0.0

$0.0

Formerly Utilized Sites Remedial Action Program (FURSAP)

$150.0

+$11.0

+$30.0

Investigations

$125.0

+$2.0

+$43.0

Flood control and coastal emergencies

$35.0

$0.0

$0.0

Other Highlights of the bill include the following:

The Act allows for six new study starts in FY2019 – one for navigation, one for flood protection, one for environmental restoration, and three for any authorized purpose.

The Act allows for five new construction starts – one for navigation, one for flood protection, one for environmental restoration, and two for any authorized purpose.

There is a prohibition on USACE spending any funds on moving elements of USACE to other agencies.

The Act clarifies that a new start designation is not needed to move from feasibility phase of a study to preconstruction engineering and design phase (PED).

$25M is available for authorized reimbursements to non-federal partners

The Act calls for full use of the Inland Waterway Trust Fund and more than 90% use of the Harbor Maintenance Trust Fund.

The Act allocates $50M for use by Donor and Energy Ports…the full authorized amount.

For all the additional funds provided, USACE has 60 days to produce a Work Plan designating where the money will be allocated in the coming fiscal year, including specific projects and dollar amounts. At the same time, USACE is preparing its portion of the President’s Budget for FY2020 that will be submitted to Congress in February of next year.

At last week’s Floodplain Management Association meeting in Reno, Nevada, the two of us planned and participated in a panel discussion on federal funding for flood control projects under the Trump administration. Attendees enjoyed a discussion on federal funding options for local entities that are ready to carry out a flood control project (or any water infrastructure project, really), how some California agencies are strategizing to obtain such funding, and importantly, a perspective from a key staff member at the President’s Office of Management and Budget, which sets and implements the President’s policy and budget. Continue Reading

All joking aside about a gridlocked Congress, real progress has been made this week on flood risk reduction authorizations and appropriations. As explained below, it is looking like the 2018 Water Resources Development Act (WRDA) may pass shortly, and the relevant budget subcommittees are ready to move an agreed-upon appropriations packet forward to their respective floors as well. Also, Congress appears to have put a nail in the coffin for any proposal to move USACE to a different Federal department.

We are happy to share the guidance on how USACE should be moving forward with projects funded under the Supplemental Appropriation. The guidance can be found here.

The appropriation provided an incredible $15 billion for construction:

Public Law 115-123 provides $15,055,000,000 in Construction funding (Supplemental Construction funds) to address emergency situations at Corps of Engineers projects, and to construct, and to rehabilitate and repair damages caused by natural disasters to, Corps projects. Of that amount, $15,000,000,000 is available to construct flood and storm damage reduction projects in States and insular areas (territories) with more than one flood-related major disaster declared pursuant to the Robert T . Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) in calendar years 2014, 2015, 2016, or 2017. Thirty-three states and three territories meet the criteria and are listed in Enclosure 2. Additionally, not less than $10,425,000,000 of the $15,000,000,000 is available for projects within such States and insular areas (territories) that were also impacted by HHIM. The States and territories that meet the criteria and also were also impacted by HHIM are listed in Enclosure 3. Further, Public Law 115-123 provides that all repair, rehabilitation, study, design, and construction of Corps of Engineers projects in Puerto Rico and the United States Virgin Islands (USVI), using the Supplemental Construction funds, shall be conducted at full federal expense.

The guidance confirms, in the last sentence of this paragraph, that the funds will allow construction at full federal expense (without a local cost share). Although, of course, any costs of a locally preferred plan that are in excess of the cost of the National Economic Development Plan for a project will remain the responsibility of the non-Federal sponsor, which must pay such costs during construction of the project.

As always, please check back for more updates on flood protection law and policy.

We have reported many times in the past on U.S. Army Corps of Engineers’ 408 policy: Here, here, here, here, here, and here. Well, we recently obtained a copy of what appears to be the final guidance, albeit with no date on it. Also, we can’t find it on any government websites yet. So, we think this is the final version, but only time will tell. If anyone knows, please share your thoughts in our reply section below.

In late June, President Trump unveiled his administration’s plan to reorganize the federal government. The proposed shakeup is entitled “Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendations.” On page 15 of the proposal you will find: “Move the Army Corps of Engineers (Corps) Civil Works out of the Department of Defense (DOD) to the Department of Transportation (DOT) and Department of the Interior (DOI).” This proposal has left many people asking questions, such as how would it work? Would it be better? Does Congress need to approve it? And how is this different than every other proposal made in the past? Indeed, during a recent Senate hearing, Senators voiced inquiries about the Department of Defense’s views:

Editors

About this Blog

Welcome to our flood risk and floodplain management blog. Our goal is to provide fresh insights on the laws and policies that affect flood risk and floodplain management, and how these issues might affect your agency or business operations. Our expertise in this area, which involves understanding a complicated intersection of Federal, state and local laws as well as public policy and flood control engineering concepts, gives us unique insight into an area that is complex and often misunderstood. We invite you to follow our blog and get to know us through our blog posts, leave a comment or question, and engage us in conversation.If you are interested in a guest post on the blog, please drop us a line. We would love to hear your thoughts.

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